A national seance over the Constitution

July 17, 2012|By KEVIN HORRIGAN | St. Louis Post-Dispatch

"The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express an opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people."

--U.S. Supreme Courtmajority ruling, June 28

The strangest part about the reaction to the Supreme Court decision on the Affordable Care Act has been all the communing with the dead. It's like we're having a giant national seance.

Across the River Styx are the famous "Framers," referenced above, with a capital "F," by Chief JusticeJohn G. Roberts Jr. in his majority opinion in National Federation of Independent Business v. Sebelius.

Even people who'd draw a Sarah Palin-like blank on identifying NFIB v. Sebelius can tell you precisely what the Framers intended with the Commerce Clause. These long-dead men clearly (a) intended to give Congress the right to legislate health care or (b) had no such intention, no more than they intended that Congress should regulate the consumption of broccoli.

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You can hear the echoes of Madison and Jefferson arguing broccoli.

It's nice that regular folks now get to argue about these things. Lawyers and court-watchers have been doing it for decades. They craft long exegeses on the topic, clearly differentiating between "originalism" (what did the sainted Framers write?) and "intentionalism" (what did they intend?) and "interpretivism" (how should it be interpreted?).

Entire law schools are organized and divided along these lines or their opposites. People devote themselves to analyzing the lives and letters of the Constitution's framers, the origins and vagaries of linguistic usage in the late 18th century, the precedents in British common law and Enlightenment philosophy. The opposite sides pound each other in law review articles and -- whenever a new appointee to the Supreme Court is being considered for confirmation -- in endless Judiciary Committee hearings.

It is a fine thing that scholars debate these points. The law can't be whatever you want it to be, unless you're Vladimir Putin.

But when the argument is boiled to its essence, it comes down to this: Were the Framers just a bunch of really smart guys who couldn't possibly have imagined what the nation would become, or were they somehow imbued with supernatural wisdom transcending space and time?

Consider the arguments over the Second Amendment. Justice Roberts' court has determined that the Framers intended that "the right to bear arms" means that an individual has the right to own firearms. The court further decided that the Framers meant firearms "in common use at the time."

Common at the time of the Framers were single-shot rifles and pistols. Common today are semi-automatic rifles and handguns that can fire multiple rounds at velocities undreamed of when the Second Amendment was written. What's more, the court has declined to place limits on how many of these weapons an individual may buy and possess.

The court decided that the values, premise and principle -- possession of weapons in common use at the time -- extend across the centuries.

What's amazing is how often an individual -- be he a Supreme Court justice or a guy on the street -- finds that the Framers' judicial views coincide with his political views.

Sometimes the law guides justices in unexpected directions. So it happened with former Justices John Paul Stevens and David Souter, Republican appointees who came to anchor the court's liberal wing. So it happened with Chief Justice Roberts on health care.

Now the too-hideous-for-Fox Glenn Beck is selling T-shirts featuring the chief justice's picture and the word "Coward."

We find parallels to this in religion. In Afghanistan and Pakistan, the Taliban have been known to collect cell phones, radios and televisions and set fire to them. They reason that such devices weren't available in the seventh century, thus Islam's "framers" would not want them used in the 21st.

Often the moral police are carrying Kalashnikov rifles, which were not widely available in the seventh century.

And consider the debate within America's Christian religious circles about the intentions of the "framers" of their faith. Catholicism's framers were OK with married priests and bishops for a thousand years, but now it's verboten. Some Protestant churches have women priests or gay and Lesbian priests. Other churches won't even play softball against teams from churches with gay pastors.

In religion and in the law, different people examine the same founding texts and come away with startlingly different conclusions. All sides claim to commune with the spirit of various framers. All sides can make angels dance on the heads of pins.

There really should be one simple rule. Fortunately there is, and it is golden.